[Cite as Jacobs v. Sandusky Register,
2024-Ohio-5422.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY
Matthew Jacobs Court of Appeals No. E-24-006
Appellant
Trial Court No. 2022 CV 0097
v.
Sandusky Register, et al. DECISION AND JUDGMENT
Appellees Decided: November 15, 2024
…
Richard M. Kerger, for appellant.
David L. Marburger, for appellee.
…
MAYLE, J.
{¶ 1} Plaintiff-appellant, Matthew Jacobs, appeals the January 2, 2024 judgment
of the Erie County Court of Common Pleas, granting summary judgment in favor of
defendants-appellees, Matt Westerhold, and Ogden News Publishing of Ohio, Inc. (aka
the Sandusky Register) (collectively, “the defendants”). For the following reasons, we
affirm the trial court judgment.
{¶ 2} Also before the court is Jacob’s motion to supplement the record with the
transcript of the deposition of Matt Westerhold. Jacobs cited the deposition transcript in
his brief opposing summary judgment, but according to the trial court docket, did not file
the transcript or excerpts of the transcript in the trial court. For the reasons described
below, we deny Jacob’s motion.
II. Background
{¶ 3} Matthew Jacobs is the sole detective for the city of Huron and was a part-
time wrestling coach for Huron City Schools. Ogden News Publishing of Ohio, Inc.
owns the Sandusky Register newspaper, and Matt Westerhold is the paper’s managing
editor.
{¶ 4} Jacobs filed a complaint for libel against Ogden, the Sandusky Register, and
Westerhold. According to Jacobs’s complaint, in the spring of 2019, two 13-year-old
girls (Jane Doe 1 and Jane Doe 2) alleged that a male classmate (John Doe) sent them
photos of penises. Jane Doe 1’s father contacted Jacobs for advice how to handle the
incident. Jacobs told him they could (1) file a criminal complaint, or (2) try to resolve the
matter with John Doe’s family. Jane Doe 1’s father told Jacobs that he would attempt the
second option. Jacobs became concerned that Jane Doe’s family could be subject to
criminal sanctions if these photos remained on the girl’s phone, so he told Jane Doe 1’s
father that if they elected not to pursue criminal charges, they should destroy the
photographs.
2.
{¶ 5} Soon after speaking with Jane Doe 1’s father, Jane Doe 2’s parents contacted
Jacobs and said that they wished to pursue a criminal complaint. He told them that they
should come in to file the report. At some point, Jacobs told both families that he
coaches John Doe and knows his family, but he assured them that he could be fair and
impartial in handling the matter. He alleged that neither family objected.
{¶ 6} Jacobs claimed in his complaint that he thoroughly investigated the girls’
accusations, conducted interviews, reviewed the photographs, and with the
recommendation of the police chief, turned the investigation over to the Erie County
Juvenile Prosecutor, who filed charges. While the matter was being investigated, new
charges surfaced that John Doe had nonconsensual sexual contact with one of the girls.
Jacobs investigated a possible charge for gross sexual imposition, but he did not file the
charge because he concluded that no probable cause existed. The prosecutor disagreed
and a new complaint was filed. John Doe eventually entered into a plea agreement.
{¶ 7} While these issues were developing, news stories were published in the
Sandusky Register. Jacobs alleged that Westerhold was “unrelenting in his efforts to
obtain and report information.” He claimed that Westerhold obtained a copy of the
investigation “that contained answers to many of the questions which were being
presented in the Defendant Newspaper as unanswered,” but “no effort was made to
furnish those answers in any news article.” Instead, Jacobs alleged, the newspaper
repeatedly reported the allegations contained in civil suits filed by the families and
printed that Jacobs had “mishandled” the investigation “despite the fact that no one was
3.
ever able to point to any way in which that had occurred.” Jacobs claimed that on August
15, 2021, the defendants “made the statement of fact that [Jacobs] had mishandled the
investigation”—a statement that Jacobs claimed was false. He alleged that the false
statement constituted libel per se because the statement damaged him professionally.
{¶ 8} The defendants moved to dismiss the claim. The trial court denied the
motion, and an answer was filed. The defendants later filed a motion for summary
judgment, attaching the Jane Doe families’ complaints and the August 15, 2021 article
referenced by Jacobs.
{¶ 9} The defendants argued that R.C. 2317.05—Ohio’s statutory fair report
privilege—protects press accounts that summarize allegations in civil pleadings where
the account is impartial and substantially accurate and it was not published maliciously.
They maintained that the privilege protects the newspaper article at issue here. They also
claimed that the challenged statement—summarizing the Jane Doe families’ allegations
as claiming that Jacobs “mishandled” the investigation—was an expression of an opinion
and was inactionable.
{¶ 10} Jacobs sought a continuance under Civ.R. 56(F) so that he could conduct
additional discovery. He ultimately deposed Westerhold, then filed his brief in
opposition to the motion for summary judgment.
{¶ 11} Jacobs recognized that “statements in civil pleadings have an absolute
privilege,” and “under the litigation privilege doctrine, a newspaper publishing [a report
about a civil suit] has no liability, at least according to the Defendant.” He conceded that
4.
the statements were not published maliciously. But Jacobs argued that the defendants did
not act impartially when they published the August 15, 2021 article, given that the
newspaper interviewed the Jane Doe families but not Jacobs. He disagreed that the
article reported the defendants’ opinions, and maintained that the article did not merely
quote the civil complaint, but instead asserted as fact that Jacobs had mishandled the
investigation.
{¶ 12} In support of his position, Jacobs pointed to Westerhold’s deposition
testimony where he explained that the paper publishes editorials when it has an opinion
about a problem in the community warranting the newspaper’s attention, and denied that
the newspaper had an obligation to determine the accuracy of an allegation in a lawsuit
before reporting it. Westerhold testified that he never met Jacobs, did not interview him
or ask any reporter to do so, had no reason for not interviewing him, and did not know
that statements contained in civil litigation are absolutely privileged. He said that he
assumed that the police chief knew he could call Westerhold, the editorial board did not
discuss whether the families’ concerns were valid, and he believed that if someone said
something in a lawsuit, he could report it without checking to be sure that it is accurate.
{¶ 13} Jacobs responded in his opposition brief that John Doe’s family initiated a
lawsuit against the newspaper, and as part of the settlement of that action, the newspaper
agreed to withdraw from its website 15 articles, listed in an exhibit that was used at
Westerhold’s deposition. Westerhold testified that he did not know the context of the
5.
agreement to withdraw the articles, but he agreed that it is unusual for stories to be
withdrawn.
{¶ 14} In a judgment journalized January 2, 2024, the trial court granted summary
judgment to the defendants. The court quoted at length from the August 15, 2021 article.
It also summarized paragraph-by-paragraph the Jane Doe families’ complaints as they
relate to Jacobs’s conduct. The court explained that there were two potentially-applicable
privileges that the defendants could assert—(1) the privilege set forth in R.C. 2317.05,
and (2) the common-law privilege of neutral reporting—both of which are affirmative
defenses that defendants must prove by a preponderance of the evidence by showing that
the statements in the August 15, 2021 article were substantially accurate. It found that
“[w]hether or not the statements contained in the article of August 15, 2021, were
‘substantially accurate’ is a question of law, event (sic) though the establishment of the
two privileges set forth above calls for a factual determination of whether or not the
article sets forth a substantially accurate account of the two lawsuits filed against Mr.
Jacobs, as well as other defendants.”
{¶ 15} The court concluded that the statements made in the August 15, 2021
article were substantially accurate, therefore, under both R.C. 2317.05 and the common
law, the defendants were privileged to publish them. It agreed with Jacobs that the
statements were defamatory, but it observed that the article reported not that Jacobs had
mishandled the investigation, but that the Jane Doe families’ lawsuits alleged that Jacobs
mishandled the investigation.
6.
{¶ 16} The trial court disagreed with the defendants that the privilege set forth in
R.C. 2317.05 required them to show that the statements in the article (1) were not made
maliciously, and (2) were impartial. Rather, it found that under either of the applicable
privileges, the statements need only have been “substantially accurate”—motive and
subjective intent are immaterial. Having reviewed the allegations of the Jane Doe
families’ complaints in detail, the court concluded that the August 15, 2021 article
accurately characterized the allegations in their complaint as claiming that Jacobs
“mishandled” the investigation.
{¶ 17} Jacobs appealed. He assigns the following error for our review:
The Trial Court erred by granting summary judgment when there
were material facts in dispute.
II. Law and Analysis
{¶ 18} In his sole assignment of error, Jacobs challenges the trial court’s decision
to grant summary judgment in favor of the defendants. Jacobs concedes that there is no
evidence that the statements in the August 15, 2021 article were published maliciously.
However, he maintains that to avail themselves of the privilege set forth in R.C. 2317.05,
the defendants must show that the news story was both accurate and impartial. He insists
that there is a question of fact preventing summary judgment because the newspaper
agreed to withdraw the August 15, 2021 article as part of a settlement of another suit,
which he claims may support an inference that the article was libelous. Finally, Jacobs
disputes that the statements in the article constituted opinion.
7.
{¶ 19} The defendants challenge the admissibility of some of Jacobs’s evidence.
They maintain that the article is protected because it was a substantially accurate account
of the allegations in the Jane Doe families’ lawsuits, and they insist that only questions of
law are presented here. The defendants further contend that their reporting was not
malicious, was impartial, and contained statements of opinion.
A. Standard of Review
{¶ 20} Appellate review of a summary judgment is de novo, Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105 (1996), employing the same standard as trial courts.
Lorain Natl. Bank v. Saratoga Apts.,
61 Ohio App.3d 127, 129 (9th Dist.1989). The
motion may be granted only when it is demonstrated:
(1) that there is no genuine issue as to any material fact; (2) that the
moving party is entitled to judgment as a matter of law; and (3) that
reasonable minds can come to but one conclusion, and that conclusion is
adverse to the party against whom the motion for summary judgment is
made, who is entitled to have the evidence construed most strongly in his
favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67
(1978), Civ.R. 56(C).
{¶ 21} When seeking summary judgment, a party must specifically delineate the
basis upon which the motion is brought, Mitseff v. Wheeler, 38 Ohio St.3d 112 (1988),
syllabus, and identify those portions of the record that demonstrate the absence of a
genuine issue of material fact. Dresher v. Burt,
75 Ohio St.3d 280, 293 (1996). When a
properly supported motion for summary judgment is made, an adverse party may not rest
on mere allegations or denials in the pleadings, but must respond with specific facts
showing that there is a genuine issue of material fact. Civ.R. 56(E); Riley v.
8.
Montgomery,
11 Ohio St.3d 75, 79 (1984). A “material” fact is one which would affect
the outcome of the suit under the applicable substantive law. Russell v. Interim
Personnel, Inc.,
135 Ohio App.3d 301, 304 (6th Dist.1999); Needham v. Provident Bank,
110 Ohio App.3d 817, 826 (8th Dist.1996), citing Anderson v. Liberty Lobby, Inc.,
477
U.S. 242, 248 (1986).
B. Jacobs’s Motion to Supplement and Other Evidentiary Issues
{¶ 22} In opposing the motion for summary judgment, Jacobs cited portions of
Westerhold’s deposition, but he did not attach to his opposition brief excerpts of the
transcript of the deposition and did not file the deposition transcript itself. Jacobs asks
that he be permitted to supplement the record with the transcript of the deposition of Matt
Westerhold.
{¶ 23} Under Civ.R. 56(C), the following materials may be considered on a
motion for summary judgment: the pleadings, depositions, answers to interrogatories,
written admissions, affidavits, transcripts of evidence and written stipulations of fact.
“Other types of documents may be introduced as evidentiary material only through
incorporation by reference in a properly framed affidavit.” Zapata Real Estate, L.L.C. v.
Monty Realty, Ltd., 2014-Ohio-5550, ¶ 25 (8th Dist.), citing Dzambasow v. Abakumov,
2005-Ohio-6719, ¶ 26 (8th Dist.), citing Lance Acceptance Corp. v. Claudio, 2003-Ohio-
3503 (9th Dist.). “Documents submitted in opposition to a motion for summary
judgment which are not sworn, certified, or authenticated by affidavit have no evidentiary
9.
value and may not be considered by the court in deciding whether a genuine issue of
material fact remains for trial.” (Internal quotations and citations omitted.)
Id.
{¶ 24} “Before a deposition transcript can be considered as ‘legally acceptable
evidence for summary judgment purposes’: (1) the transcript must be filed with the court
or otherwise authenticated; (2) the deponent must sign the deposition transcript or waive
signature[;] and (3) there must be a certification by the court reporter before whom the
deposition was taken.” Id., quoting Bank of New York Mellon Tr. Co., v. Unger, 2012-
Ohio-1950, ¶ 43 (8th Dist.). A deposition that has not been filed with the court cannot be
considered on summary judgment. Sabol v. Richmond Hts. Gen. Hosp.,
111 Ohio App.3d
598, 604, (8th Dist. 1996).
{¶ 25} Appellate review of a trial court’s order is limited to the record made in the
trial court. Fifth Third Bank v. Fin. S. Office Partners, Ltd., 2010-Ohio-5638, *3 (2d
Dist.), citing Durrstein v. Durrstein,
2001 WL 1203014 (2d Dist. Oct. 12, 2001). The
record that we can consider is “the record as it existed at the time the trial court rendered
judgment.” Leiby v. Univ. of Akron,
2006-Ohio-2831, ¶ 7 (10th Dist.), citing Chickey v.
Watts,
2005-Ohio-4974, ¶ 14 (10th Dist.); Baker v. Senior Emergency Home Repair
EOPA,
2015-Ohio-3083, ¶ 11 (6th Dist.), quoting State v. Ishmail,
54 Ohio St.2d 402
(1978), paragraph one of the syllabus (“Ohio law is clear that we must limit our review
on appeal to the record before the court at the time of judgment: ‘A reviewing court
cannot add matter to the record before it, which was not a part of the trial court’s
proceedings and then decide the appeal on the basis of the new matter.’”).
10.
{¶ 26} Here, we deny Jacobs’s motion to supplement the record with Westerhold’s
deposition transcript because that deposition was not filed in the trial court and there is no
evidence that the trial court considered it. In fact, the trial court issued a 20-page
judgment granting summary judgment to defendants—including 13 pages of factual
background—but did not cite Westerhold’s deposition at all. Moreover, we decline to
consider any of the exhibits that were attached to the deposition transcript—other than
the August 15, 2021 article, which defendants attached to their answer and the trial court
clearly reviewed and considered—because they were not filed in the trial court and were
not properly authenticated.
C. Our De Novo Review
{¶ 27} Having denied Jacobs’s motion to supplement the record with the transcript
of Westerhold’s deposition, and having made clear that the exhibits to that deposition will
not be considered (except the August 15, 2021 article), we now consider the merits of
Jacobs’s appeal.
{¶ 28} To prevail on a claim of defamation against a news organization, a plaintiff
must show “(1) the organization made a false statement, (2) the statement was
defamatory, (3) the organization published the statement, (4) the plaintiff was harmed as
a proximate result of the publication, and (5) the organization acted with the requisite
degree of fault in publishing the statement.” Anderson v. WBNS-TV, Inc., 2019-Ohio-
5196, ¶ 9, citing Am. Chem. Soc. v. Leadscope, Inc., 2012-Ohio-4193, ¶ 77. A news
11.
organization may be protected against liability, however, under the statutory privilege set
forth in R.C. 2317.05.
{¶ 29} R.C. 2317.05 provides, in pertinent part, as follows:
The publication of a fair and impartial report of . . . the filing of any
affidavit, pleading, or other document in any . . . civil cause . . ., or of a fair
and impartial report of the contents thereof, is privileged, unless it is proved
that the same was published maliciously, or that the defendant has refused
or neglected to publish in the same manner in which the publication
complained of appeared, a reasonable written explanation or contradiction
thereof by the plaintiff, or that the publisher has refused, upon request of
the plaintiff, to publish the subsequent determination of such suit or action.
...
{¶ 30} In Oney v. Allen, 39 Ohio St.3d 103, 105-106 (1988), the Ohio Supreme
Court determined that a report is “impartial” if it is unbiased and does not give the
impression that the writer agrees or disagrees with the assertions contained in the official
record. It explained that to fall within the privilege of R.C. 2317.05, the defendant must
show that “the publication is a substantially accurate report of the official record.”
Id. at
paragraph two of the syllabus. The Court clarified that a report is “substantially accurate
if it conveys the essence of the official record to the ordinary reader, without misleading
the reader by the inclusion of inaccurate extra-record information or the exclusion of
relevant information in the record.”
Id., at paragraph three of the syllabus. Importantly,
the Court found that R.C. 2317.05 does not require the report to be a verbatim
reproduction of the official record.
Id. at paragraph one of the syllabus. It is sufficient if
the “gravamen,” “gist,” or “substance” is substantially correct.
Id. at 106.
12.
{¶ 31} Here, the allegedly defamatory statement was contained in the August 15,
2021 article and was made in the context of reporting the crux of the lawsuits filed in
federal court by the Jane Doe families. Where the content of allegedly defamatory
statements and the circumstances of their communication are not disputed, the
determination of whether the allegedly defamatory statement is subject to privilege is a
question of law to be reviewed de novo. Anderson v. WBNS-TV, Inc., 2024-Ohio-4880, ¶
35 (10th Dist.). Here, the content and circumstances of the allegedly defamatory
statements are not disputed, thus the applicability of the privilege may be determined as a
matter of law.
{¶ 32} The article at issue reported as follows:
Residents want answers
Matt Westerhold
Aug 15, 2021 2:00 PM
HURON Huron’s school board will consider an agenda item that
has some community members fighting back.
On Tuesday, board members will consider making Matthew A.
Jacobs the head wrestling coach, renewing his contract. Jacobs, a part-time
employee of the district, is a full-time Huron police detective.
Normally a routine agenda item that would not get much attention,
this appointment has drawn the ire of some residents because the district is
fighting a lawsuit that alleges Jacobs, in his role as a police detective,
mishandled an investigation at McCormick Junior High School in 2019.
Two students, both 13 at the time, contend they were subjected to
sexual misconduct by a third student, also 13, and the district failed to
protect them from further abuse after the boy was suspended and later
returned to school.
13.
The boy is a student-athlete and was coached by Jacobs. Jacobs told
families he was personal friends with the boy’s parents, according to a
lawsuit in Erie County Common Pleas Court against the school district,
school board members, administrators and Jacobs, which also contends the
detective told the victims’ families to destroy obscene photos and videos
the boy sent the girls or they could be charged with a crime.
Nothing to see here
Huron police Chief Bob Lippert has defended the investigation
Jacobs conducted and said it resulted in the boy being charged with a
felony-level crime, for which he pleaded out in juvenile court. Lippert said
recently he has not investigated the allegations Jacobs mishandled the
investigation because no formal complaint was filed with the police
department.
But Lippert has recently received complaints
“If there has not been a review or investigation at all, I am asking,
why not?” Kelly Netherland, whose family is from Huron, wrote to Lippert
on Aug. 4. “I urge you to you (sic) reconsider.”
Netherland said people want answers.
“Huron is a great community. Quiet and peaceful in major part
because of your department. With that said, I hope you can understand
why the community is not willing to be quiet on this.”
Lippert said last week he would consider handing over any further
investigations of the McCormick School incident to an independent agency
because of the appearance of conflicts. It is unclear where that stands
presently.
Keeping kids safe
In a letter to the editor on Page A4 of Monday’s newspaper, a
district resident questions the school board’s wisdom in selecting Jacobs for
the coaching job with so many unanswered questions about the McCormick
school incident.
14.
District officials are accused in the lawsuit of seating one of the
victims next to the boy who allegedly assaulted her in most, if not all, of
her classes after the boy returned to school from being suspended in the
spring of 2019.
They did not switch out seats after she complained, and the girl was
subjected to bullying and verbal and physical taunts, according to the
lawsuit, until she and the other victim both withdrew from the district.
The board owes the community a full accounting according to Erin
Percy.
(Emphasis added.) The italicized phrases are at issue here, where the defendants
characterize the complaints as having alleged that Jacobs “mishandled” the investigation.
{¶ 33} Certified copies of the Jane Doe families’ lawsuits were included as
exhibits to the defendants’ motion for summary judgment. Jacobs was named as a
defendant in both lawsuits. With respect to Jacobs’s conduct, the complaint filed by Jane
Doe 1’s family alleged as follows:
• Jacobs was a detective of the Huron Police Department, an employee of the
school district, and John Doe’s wrestling coach;
• Jane Doe 1’s family contacted Jacobs regarding graphic pictures and videos
that were sent to multiple girls at the junior high school;
• Jacobs said that he would “interview everyone”;
• Jacobs recommended that they delete the pictures/videos because they could be
charged with child pornography if they were discovered before a report was
filed;
• Jacobs said that John Doe is a “‘jackass and he always tries to act as the class
clown’”;
15.
• Jacobs said that he “knew John Doe personally, since he was his wrestling
coach at Huron City Schools and was a close family friend of John Doe’s
parents”;
• Jacobs said that “during wrestling season, he would tell the wrestling team not
to send these types of pictures, but he said that he was not surprised they kept
doing it because that is how kids ‘date’ nowadays”;
• Jacobs talked to students “who confirmed witnessing these same events and
other similar acts by John Doe,” including instances where he showed other
students “pictures of his penis on his phone while at school and took a picture
up another female student[’]s skirt”;
• “Jacobs was told that [the] parents [of another girl who received lewd pictures
from John Doe] wanted to be called when they interviewed her because she
had anxiety issues,” but he did not do so;
• Jacobs was provided with photographic evidence of pictures John Doe sent to
Jane Doe 2;
• “Jacobs interviewed John Doe a week after everyone else because John Doe
already had a lawyer, but there are no details of these questions or answers in
the police report produced by Detective Jacobs, despite having a detailed
outline of every other witness’ responses”;
• “Jacobs never excused himself from the investigation due to a conflict of
interest”;
• “Jacobs indicated that he would write up a report and send it to the Erie County
Prosecutor”;
• “Jacobs, through this investigation, was provided a phone from Jane Doe [2] to
download the photographic evidence that [she] and her family had shared with
Detective Jacobs”;
• Jane Doe 1’s family “attempted to contact Detective Jacobs regarding charges
against John Doe and was informed that once he was done with his report he
would turn it over to the Prosecutor to determine what to do”;
• “Prosecutor Goodman indicated that she never received any report from
Detective Jacobs and had no idea who they were”;
16.
• “Jacobs told [Jane Doe 1’s father] that he had found no more incriminating
evidence on Jane Doe [2]’s phone and that this ‘does not make Jane Doe [2]
look good,’ insinuating that she was fabricating everything despite several
male and female students witnessing this ongoing harassment as well as
Detective Jacobs personally viewing lewd photos on both Jane Doe [2]’s phone
and John Doe’s phone”;
• “Jacobs never sent any pictures or videos to [Prosecutor Goodrum], but instead
kept all of the evidence hidden and/or destroyed the evidence”; and
• “John Doe was arrested on the charges related to sending pictures of his
genitals to [Jane Doe 1] and other victims,” “was charged with two counts of
pandering and two counts of public indecency,” and “pleaded guilty to one
count of pandering obscenity involving a minor.”
{¶ 34} The complaint filed by Jane Doe 2’s family included similar allegations:
• Jacobs was the “investigating officer throughout the entire investigation,” was
an employee of the Huron City School District, and served as John Doe’s
wrestling coach;
• Jacobs “recommended that [Jane Doe 1’s family] should delete any
pictures/videos John Doe sent their daughter” and informed them to tell Jane
Doe 2’s family “to either call him or delete the pictures/videos”;
• “Jacobs explained that both families could all be charged with child
pornography if the pictures or items were discovered or reported before the
families filed a report”;
• The family met with Jacobs at the Huron Police Department;
• The family told Jacobs “everything that had happened with the inappropriate
pictures”;
• Jacobs told the family “that he knew John Doe well and was not surprised that
John Doe was committing these offensive acts”;
• Jacobs said “that he told the wrestling team not to send these pictures, but he
said they kept doing it because that is how kids ‘date’ nowadays”;
17.
• The family left their daughter’s cell phone with Jacobs “so he could download
the inappropriate pictures and videos with the intent that the evidence would be
used to prosecute John Doe”;
• Jacobs never sent the evidence to the Erie County Prosecutor’s office and
instead “kept the evidence to himself and made false statements regarding the
content of [Jane Doe 2’s] phone to third parties in order to disparage Jane Doe
2] and shield John Doe from consequences”;
• “Jacobs saw the photos of John Doe, sent by him to [Jane Doe 2] on [her]
phone”;
• The family “noted that the pictures and videos were deleted off [Jane Doe 2’s]
phone,” and Jacobs “held the only proof of the illegal misconduct by John
Doe”;
• Jacobs told the family “that he would make a report and submit it to the Erie
County Prosecutor’s Office,” but “he failed to send the evidence of the
wrongdoing along with the report”;
• Jacobs told the family that he could not interview John Doe because his parents
had hired an attorney;
• The principal told the family that “Jacobs conducted an interview with John
Doe over Spring Break,” but the principal was not invited to that interview;
• Jane Doe 2’s mother called the prosecutor’s office and informed Jacobs that
John Doe assaulted Jane Doe 2 in the locker room;
• The prosecutor informed the family that Jacobs “never sent her the pictures and
videos from [Jane Doe 2’s] phone”; and
• Jane Doe 2 observed Jacobs “pat John Doe’s back and say, ‘it’s okay
buddy...we got this,’” sending the message that he would “ensure that John
Doe would be shielded from any significant consequences.”
{¶ 35} In sum, the families alleged in their complaints that Jacobs protected John
Doe because he was a family friend and athlete, investigated the girls’ claims despite
having a conflict of interest, encouraged the families to delete evidence supporting their
18.
daughters’ accusations, and hid, destroyed, or failed to turn over evidence to the
prosecutor. As a matter of law, we find that the defendants fairly and accurately
summarized the complaints as alleging that Jacobs “mishandled” the investigation here.
The defendants accurately characterized and reported the “gist” of the underlying
complaints.
{¶ 36} Despite Jacobs’s suggestion to the contrary, the defendants were not
obligated to confirm the accuracy of the Jane Doe families’ allegations before reporting
about them. See Sethi v. WFMJ Television, Inc., 134 Ohio App.3d 796, 811 (7th Dist.
1999) (“Appellants’ contention regarding the failure to conduct further investigation in
this matter and obtain an expert medical review prior to broadcast is without merit as
appellees had no such duty.”); Smitek v. Lorain Cnty. Printing & Publishing Co.,
1995
WL 599036, *4 (9th Dist. Oct. 11, 1995) (rejecting the claim that newspaper was
required to independently investigate the accuracy of the contents of the official record
about which it reported). And although Jacobs claims that the defendants made a “flat
factual statement” that Jacobs mishandled the investigation, a simple review of the article
confirms that they reported that these were allegations contained in the Jane Doe
families’ complaints.
{¶ 37} Jacobs insists that the defendants lacked impartiality in their reporting, as
evidenced by an editorial advocating that “Me Too” signs should be hung in the
classrooms at the school. But the only article that was properly made part of the record
here was the August 15, 2021 article, which made no mention of a “Me Too” campaign.
19.
Additionally, Jacobs contends that the defendants ultimately withdrew the article from
their website. However, the record is devoid of summary-judgment quality evidence
demonstrating that (or why) the article was withdrawn. What’s more, this fact has no
bearing on whether the privilege in R.C. 2317.05 applies here.
{¶ 38} For these reasons, we find that the trial court did not err when it found that
the statements were protected by the privilege set forth in R.C. 2317.05, and we find no
error in its decision granting summary judgment in favor of the defendants. We find
Jacobs’s sole assignment of error not well-taken.
III. Conclusion
{¶ 39} As a matter of law, statements made in the defendants’ August 15, 2021
article that the Jane Doe families alleged that Jacobs “mishandled the investigation” were
impartial and were substantially accurate. The trial court properly granted summary
judgment in favor of the defendants. We find Jacobs’s assignment of error not well-
taken.
{¶ 40} We deny Jacobs’s motion to supplement the record.
{¶ 41} We affirm the January 2, 2024 judgment of the Erie County Court of
Common Pleas. Jacobs is ordered to pay the costs of this appeal under App.R. 24.
Judgment affirmed.
20.
Jacobs v. Sandusky Register, LLC
Appeal No. E-24-006
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Christine E. Mayle, J. ____________________________
JUDGE
Myron C. Duhart, J.
____________________________
Charles E. Sulek, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
21.
